In a novel and lengthy opinion, a New Jersey family court judge has awarded joint custody of a child to three people—the biological father, his same-sex spouse, and the mother.
In the decision, D.G. and S.H. v. K.S., approved for publication Feb. 5 after being issued nearly six months earlier, Ocean County Superior Court Judge Stephanie Wauters was tasked with delving into the case of three people who “believed that they were creating a new family paradigm, a tri-parenting relationship with the child.”
Indeed the arrangement was creative, as Marie Claire magazine published a piece about them in what appear to have been more harmonious times.
The child is the offspring of a man in a same-sex marriage and a woman who had long been friends with both spouses.
The opinion refers to them only by their initials, though the July 2010 Marie Claire article itself—a copy of which was obtained by the Law Journal—identifies them thus: Darren, the biological father, conceived the child through artificial means with Kitty, the biological mother and is married to Sam.
The three began discussing parenthood in 2006, and ultimately—with the help of an ovulation monitor and a turkey baster, according to the article—conceived.
After one miscarriage, the process did lead to a successful pregnancy, and the child, a girl, was born in 2009, according to the opinion. She took the surname of Sam, despite there being no biological connection with him.
Leading up to the birth, the three took classes together and opened a baby registry with duplicate items in anticipation of the child living in two homes, according to the opinion.
After birth, the child split time between Kitty’s home in Point Pleasant Beach, and Darren and Sam’s home in Manhattan, the opinion said.
The rift between Kitty and the couple began when Kitty—having met a man with whom she fell in love in Costa Rica, where she regularly traveled—began planning a move to California, where the man lived. Kitty planned to bring the child with her, the opinion stated.
Darren and Sam in March 2014 composed a written objection to Kitty’s removal of the child, and later filed a complaint. The two sides did reach a number of consent agreements, but ultimately spent 19 days at trial over child custody, Kitty’s plan to move, and other issues.
Wauters, in a 67-page opinion issued last Aug. 24, ordered all three to have joint residential custody, finding that arrangement to be in the child’s best interests.
The child should spend roughly equal time with Kitty in Point Pleasant Beach and Darren and Sam in Princeton, where they had moved, the judge decided.
The child’s “having to endure frequent travel time … due to a joint residential custodial plan is heavily outweighed by the loving bond and relationship the child will be able to maintain and experience in both households in New Jersey,” Wauters wrote.
The judge did rebuff Sam’s effort to establish himself as a legal parent of the child, holding that, though he’s a psychological parent, “the court does not have the jurisdiction to create a new recognition of legal parentage other than that which already exists—genetic contribution, adoption, or gestational primacy.”
According to Wauters, “even though [Sam’s] surname is on the child’s birth certificate as the child’s own, this is not dispositive of legal parentage,” and “simply because the child bears his last name holds no weight in the determination of legal parentage.”
She ruled so even despite Sam’s constitutional claims.
“Although this court is particularly sympathetic to the claims…to establish legal parentage, a ‘tri-parenting model’ with three legal parents is supported neither by the statute at hand nor the case law,” Wauters wrote.
“A statutory change is best left to the Legislature, as such change demonstrates a ‘social policy choice,’ not a constitutional question,” she added, noting that the best-interests standard is not used to determine legal parentage.
Sam has not sought adoption, she noted.
The judge commended Sam for expressing a willingness to pay child support, but as a psychological parent he couldn’t be made to do so.
What’s more, Wauters said, it would be most fair to award no child support—because the guidelines “do not fairly or accurately take into account the…intended ‘tri-parenting’ relationship”—and for each of the three parents to split significant health and education costs evenly.
Sarah Jacobs of Jacobs Berger in Morristown, who represented Darren and Sam, said, “I do think the novelty in this case was that the psychological parentage that was at stake was not” akin to that of a stepparent, as Sam was “a party who intended himself to be a father” from the beginning.
She said they had hoped the judge would break new ground on the rights of a psychological parent and thus “provide for a lot of the alternative family structures” that exist.